Star Mine Operations, LLC v. Secretary of Labor

Plain-English summary

MSHA issued Star Mine Operations a written pattern-of-violations notice after Star Mine had sold the Revenue Mine to another company. Star Mine asked the Commission to review the notice, arguing that MSHA continued to identify it publicly as the operator and that dismissal would deny it due process. Judge Alan G. Paez held that Mine Act section 105(d) authorizes contests of specified citations, orders, penalty assessments, and abatement periods, but does not authorize a direct contest of a written pattern notice. The Judge also found that Star Mine had not established a protected liberty or property interest in its asserted reputational concern. He granted the Secretary's motion and dismissed the contest with prejudice for lack of subject-matter jurisdiction.

Decision snapshot

• Governing authority: 29 C.F.R. § 2700.1(b); 30 U.S.C. §§ 814(e) and 815(d)
• Outcome: Star Mine's contest of the pattern-of-violations notice was dismissed with prejudice for lack of subject-matter jurisdiction.
• Key point: A written pattern notice is not itself one of the citations, orders, assessments, or abatement determinations that an operator may contest directly under Mine Act section 105(d).

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

December 12, 2014

STAR MINE OPERATIONS, LLC,

:     CONTEST PROCEEDING

Contestant,

:

v.

:     Docket No. WEST 2015-100-RM

:     Written Notice No. 8834101; 09/25/2014

:

SECRETARY OF LABOR,

:

MINE SAFETY AND HEALTH

:

ADMINISTRATION (MSHA),

:     Revenue Mine

Respondent.

:     Mine ID 05-03528

ORDER GRANTING SECRETARY’S MOTION TO DISMISS

This case is before me upon the Notice of Contest filed by Star Mine
Operations (“Star Mine” or “the operator”) pursuant to section 105 of the
Federal Mine Safety and Health Act of 1977 (“Mine Act”),
30 U.S.C. § 815. Star Mine filed this contest case on October
24, 2014, to seek review of the pattern of violations (“POV”) notice that the
Secretary of Labor (“Secretary”) issued to Star Mine pursuant to his rule
implementing section 104(e), 30 U.S.C. § 814(e).

I.  Procedural
Background

On November 13, 2014, the Secretary
filed a Motion to Dismiss, asking that Star Mine’s contest be dismissed with
prejudice for lack of subject-matter jurisdiction. Thereafter, on November 24,
2014, Chief Administrative Law Judge Robert J. Lesnick assigned this contest case
to me.[1] Star Mine
filed its Response in Opposition to the Secretary of Labor’s Motion to Dismiss
on November 26, 2014.[2]

On September 25, 2014, the Secretary
issued Written Notice No. 8834101 to Star Mine. (Mot. to Dismiss at 1; Resp. in
Opp’n at 3.) Because a POV notice is not a citation or order issued under
section 104, the Secretary contends that the text of the Mine Act does not give
the Commission and its Administrative Law Judges jurisdiction to hear this case.
(Mot. to Dismiss at 1–4.) In support of his claim, the Secretary also argues that
the Commission’s own rules provide “no procedure for contesting or answering
contests of a pattern of violations notice or any other notice.” (Id. at
3.) Further, the Secretary highlights recent decisions from Chief Judge Lesnick
and Administrative Law Judge Margaret Miller that dismissed contest cases
involving POV notices for lack of subject-matter jurisdiction. (Id. at
3–4 (citing Brody Mining, LLC, 36 FMSHRC 284, 287 (Jan. 2014)
(ALJ), and Pocahontas Coal Co., 36 FMSHRC 1371, 1372–73

(May 2014) (ALJ).)[3] Accordingly,
the Secretary contends that this contest case should be dismissed with
prejudice.

In response, Star Mine notes that
it sold the Revenue Mine to Fortune Minerals Limited (“Fortune”) earlier this
year. (Resp. in Opp’n at 3–4.) Although MSHA is now issuing citations and
orders to Fortune, the agency apparently “refuses to change the information
available to the public, continuing to state that Star Mine is the operator of
the mine, and therefore, responsible for the issuance of the present [section]
104(e) orders.” (Id. at 4.) Thus, Star Mine claims to have “an interest
in having accurate information being publicly disseminated about its current
ownership obligations.” (Id. at 5.) In Star Mine’s view, that interest
requires a hearing under the Due Process Clause. (Id. at 5–8.) Moreover,
the operator claims this contest case represents its only opportunity for
relief before the Commission because Star Mine no longer owns or operates the
Revenue Mine. (Id. at 5, 9.) Star Mine therefore argues it should be afforded
a hearing and that MSHA should be ordered to correctly identify the operator of
the Revenue Mine in its Data Retrieval System.[4]
(Id. at 9.)

II.  Principles of
Law

A.        Motion to Dismiss for Lack of Subject-Matter
Jurisdiction

Although the Commission’s
Procedural Rules do not specifically enumerate the grounds for a motion to
dismiss for lack of subject-matter jurisdiction, the Federal Rules of Civil
Procedure guide Commission Judges “as far as practicable” on procedural
questions “not regulated by the [Mine] Act, [the Commission’s] Procedural
Rules, or the Administrative Procedure Act.” 29 C.F.R. § 2700.1(b). Federal
Rule 12(b)(1) allows parties to move for dismissal for lack of subject-matter
jurisdiction. See Fed. R. Civ. P. 12(b)(1). When considering a motion to
dismiss for lack of subject-matter jurisdiction, courts accept a plaintiff’s
well-pleaded factual allegations as true and draw all reasonable inferences in the
plaintiff’s favor. Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell,
770 F.3d 586, 588 (7th Cir. 2014); Leite v. Crane Co., 749 F.3d 1117,
1121 (9th Cir. 2014). However, such plaintiffs bear the burden of establishing
that jurisdiction is proper. Ctr. for Dermatology & Skin Cancer, 770
F.3d at 589; Leite, 749 F.3d at 1117. Here, that burden is borne by Star
Mine.

B.        Subject-Matter Jurisdiction Under the Mine Act

Section 105(d) of the Mine Act allows mine
operators “to contest the issuance or modification of an order issued under
section 104, or citation or a notification of proposed assessment of a penalty
issued under [section 105(a) or (b)], or the reasonableness of the length of
abatement time fixed in a citation or modification thereof issued under section
104 . . . .” 30 U.S.C. § 815(d). As Judge Miller noted
in her order dismissing a contest case involving a POV notice, “[n]otably, the
section does not afford a right to contest written notices.” Pocahontas Coal
Co., 36 FMSHRC at 1372; see also id. at 1372–74 (examining statutory
text and legislative history to conclude that Congress intended to treat POV
notices differently than citations and orders).

III.  Analysis and
Order

Every adjudicatory body requires
jurisdiction before it hears a case. As the party invoking the Commission’s authority
in this matter, Star Mine bears the burden of demonstrating that the Commission
has subject-matter jurisdiction under the Mine Act to hear the contest case
before me. Although section 105(d) is the Commission’s jurisdictional
touchstone, Star Mine has not explained how section 105(d) can be read to confer
jurisdiction upon the Commission to hear this matter. Instead, the operator
seizes on the unusual facts of this case to claim it will be denied due process
if this case is dismissed. Because the operator sold its interest in the
Revenue Mine, Star Mine contends it “has no other avenue of recourse before
this Commission to challenge MSHA’s decision to issue a Pattern Notice” other
than the contest case before me.[5] (Resp. in
Opp’n at 9.) Star Mine therefore claims that it will be denied due process if
not afforded a hearing before the Commission regarding the POV notice. (Id.
at 3.)

Star Mine seemingly hopes that I
will ignore or contort the text of section 105(d) to accommodate its purported
due process interests, but those interests are illusory.[6]
Moreover, the text of section 105(d) specifically limits the Commission’s
jurisdiction—and excludes contests of notices, POV or otherwise. Even accepting
as true the factual allegations included in Star Mine’s Notice of Contest and
drawing all reasonable inferences in its favor, Star Mine simply has not met
its burden of demonstrating that the Commission has jurisdiction over this
case. In light of the text of section 105(d) and the persuasive analyses
included in the recent decisions from Chief Judge Lesnick and Judge Miller, I
conclude that I am without jurisdiction to hear a contest case regarding a POV
notice. Accordingly, the Secretary’s motion to dismiss this case with prejudice
is GRANTED.

WHEREFORE, it is hereby ORDERED that
Docket No. WEST 2015-100-RM be DISMISSED with prejudice.

/s/
Alan G. Paez

Alan
G. Paez

Administrative
Law Judge

Distribution:

Laura E. Beverage, Esq.,
Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202

Kristin R.B. White, Esq., Jackson Kelly PLLC, 1099 18th
Street, Suite 2150, Denver, CO 80202

Tyler P. McLeod, Esq., U.S.
Department of Labor, Office of the Solicitor, 1244 Speer Boulevard, Suite 515, Denver,
CO 80204

/pjv

[1] The deadline to
file a response in opposition was initially November 25, 2014. See 29 C.F.R. § 2700.10(d).
However, on November 24, 2014, Star Mine filed an unopposed motion asking for a
one-day extension to file its response to the Secretary’s motion seeking
dismissal. Commission Procedural Rule 55 grants Commission Judges broad
powers to issue orders and procedurally manage the cases before them. 29 C.F.R.
§ 2700.55. The operator’s unopposed motion is GRANTED and its
Response in Opposition is hereby ACCEPTED.

[2] On December 3,
2014, the Secretary filed a motion seeking leave to file a reply to Star Mine’s
response in opposition. According to the Secretary, such a reply will allow him
to “meaningfully respond” to Star Mine’s “due process argument.” (Mot. for
Leave at 1.) I need not address the Secretary’s motion for leave to file a
reply because I have determined that I do not have jurisdiction in this case. See
discussion infra Part III.

[3] Although both ALJ
cases are currently on appeal, the operator in Brody did not raise this
jurisdictional issue before the Commission. Brody Mining, LLC, 36 FMSHRC
2027, 2033 (Aug. 2014). However, the Commission has granted Pocahontas Coal
Company’s petition for discretionary review of Judge Miller’s decision. See
Unpublished Order Granting PDR dated June 25, 2014.

[4] Star Mine also
attached four exhibits to its response, which included: (1) a redacted copy of
the sales contract between the operator and Fortune; (2) a printout of a legal
identity report submitted to MSHA’s website that is dated March 10, 2014; (3) a
printout from MSHA’s Mine Data Retrieval System that is dated November 26,
2014; and (4) a section 104(e) withdrawal order that was issued to Fortune and
dated October 29, 2014.

[5] In contrast,
the mine operators in Brody Mining and Pocahontas Coal Co. retained
control of the mine. Because those operators ultimately received withdrawal
orders under section 104(e), they were free to challenge the POV notice after Commission
jurisdiction attached to the resulting 104(e) withdrawal orders. See Brody
Mining, 36 FMSRHC at 286–87; Pocahontas Coal Co., 36 FMSHRC at 1373–74.

[6] Star
Mine’s
due process argument puts the cart before the horse: it assumes
that it has an interest protected by the Due Process Clause. Yet, due
process protections
only attach to life, liberty, and property interests. See, e.g., Bryn
Mawr Care,
Inc. v. Sebelius, 749 F.3d 592, 598 (7th Cir. 2014) (indicating
that a party must establish a protected interest before a court will determine
what process is due). Notwithstanding
Star
Mine’s claim that its “reputational” interest in “having accurate
information about its current ownership obligations” entitle the operator to a
hearing in this case (Resp. in Opp’n at 5–6, 8), Star Mine
does not explain why its interests
are
cognizable under the Due Process Clause. See Bryn Mawr Care, Inc., 749 F.3d at
598
(suggesting that reputational harms, alone, do not constitute interests
protected by the Due Process Clause). Thus, I need not address the adequacy of
the Commission’s procedure for contesting the POV notice in this case because
Star Mine has not demonstrated an interest to which due process protections
attach.